In Tulino v Hiller, P.C., 202 AD3d 1132, 1135 [2d Dept 2022], the court reiterated the rule regarding the continuous representation doctrine, holding:

The statute of limitations for a cause of action to recover damages for legal malpractice is three years (see CPLR 214[6]; DeStaso v. Condon Resnick, LLP, 90 A.D.3d 809, 812, 936 N.Y.S.2d 51), which accrues at the time the malpractice is committed (see Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 726 N.Y.S.2d 365, 750 N.E.2d 67; Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789, 51 N.Y.S.3d 183). “ ‘However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates’ ” (Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 789, 51 N.Y.S.3d 183, quoting Aqua–Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 144 A.D.3d 956, 957, 42 N.Y.S.3d 56). “ ‘For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney’ ” (Tantleff v. Kestenbaum & Mark, 131 A.D.3d 955, 956, 15 N.Y.S.3d 840, quoting Beroza v. Sallah Law Firm, P.C., 126 A.D.3d 742, 743, 5 N.Y.S.3d 297).

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In Ray-Roseman v Lippes Mathias Wexler Friedman, LLP, 197 AD3d 944 [4th Dept 2021], the court held that there were questions of fact regarding the continuous representation toll of the statute of limitations, holding:

The statute of limitations for a legal malpractice claim is three years (see CPLR 214 [6]; McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002]). Here, plaintiffs correctly concede that defendants met their initial burden of establishing that the malpractice claim insofar as it related to the 2014 loan transaction was commenced beyond the three-year statute of limitations (see generally Rider v. Rainbow Mobile Home Park, LLP, 192 A.D.3d 1561, 1561-1562, 145 N.Y.S.3d 246 [4th Dept. 2021]; U.S. Bank N.A. v. Brown, 186 A.D.3d 1038, 1039, 130 N.Y.S.3d 146 [4th Dept. 2020]). Thus, the burden shifted to plaintiffs to raise a triable issue of fact whether “the statute of limitations was tolled or otherwise inapplicable, or whether … plaintiff[s] actually commenced the action within the applicable limitations period” (U.S. Bank N.A., 186 A.D.3d at 1039, 130 N.Y.S.3d 146 [internal quotation marks omitted]; see generally Rider, 192 A.D.3d at 1562, 145 N.Y.S.3d 246).

We conclude that plaintiffs, in opposition, raised a triable issue of fact whether the continuous representation doctrine applied to toll the statute of limitations with respect to the malpractice claim insofar as it related to the 2014 loan transaction (see generally Carbone v. Brenizer, 148 A.D.3d 1806, 1807, 50 N.Y.S.3d 783 [4th Dept. 2017]). The continuous representation doctrine tolls the limitations period “where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (McCoy, 99 N.Y.2d at 306, 755 N.Y.S.2d 693, 785 N.E.2d 714), and “ ‘where the continuing representation pertains specifically to [that] matter’ ” (International Electron Devices [USA] LLC v. Menter, Rudin & Trivelpiece, P.C., 71 A.D.3d 1512, 1513, 898 N.Y.S.2d 388 [4th Dept. 2010], quoting Shumsky v. Eisenstein, 96 N.Y.2d 164, 168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001]). Here, plaintiffs submitted communication between the Florida attorney and defendants in which the Florida attorney indicated that defendants’ role as New York counsel included “enforcement” of the 2014 loan transaction documents. Moreover, the 2014 loan transaction and the foreclosure proceedings were close in time, as evidenced by plaintiffs’ submission of defendants’ supplemental billing invoices for legal services, which demonstrated a representation from the loan transaction to the foreclosure proceeding without a break. Thus, we conclude that questions of fact exist regarding the extent of defendants’ representation of plaintiffs and, more specifically, whether “enforcement” of the loan documents contemplated a continued representation until the loan was paid in full and the transaction completed.

Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.

Prior results do not guarantee a similar outcome.

© 2021 Richard A. Klass